DELTA v. FRANCE - 11444/85 [1990] ECHR 30 (19 December 1990)

AS TO THE FACTS

I. The circumstances of the case

9. Mr Michel Sophie Delta is a French citizen who was born in Guadeloupe and lives there today after having spent some time in metropolitan France.

A. The police investigation

10. At 6.40 p.m. on 29 March 1983 a girl of 16, Miss Poggi, and a friend of the same age, Miss Blin, were in a Paris underground station when two coloured men accosted them. One ofthe men snatched a gold chain and crucifix which Miss Poggi was wearing round her neck and ran towards the exit.

11. The two girls immediately went to the central police station of the 12th District, and at 7 p.m., as a result,

Mr Delta was arrested by Police Constable Bonci, accompanied by the two girls, in a building by the exit from the underground.

The victim and her friend immediately said they recognised him.

A search of the applicant and subsequently of the premises yielded nothing, however.

Inspector Duban interviewed both girls separately, each in the presence of her mother. They confirmed that the person who had been arrested was indeed the person who had committed the offence. The victim lodged a complaint alleging robbery.

Mr Delta was never formally confronted with Miss Poggi and Miss Blin.

14. The Chief Superintendent in charge of the Fourth Area police force forwarded the file to the public prosecutor's office.

B. The judicial proceedings

1. Paris Criminal Court

15. The Paris public prosecutor considered that a judicial

investigation was unnecessary and accordingly used the direct committal procedure (Articles 393 to 397-7 of the Code of Criminal Procedure, as amended by the "Security and Freedom" Act of 2 February 1987).

16. On 31 March 1983 Mr Delta appeared before the 23rd Division of the Paris Criminal Court, which made an interlocutory order for a psychiatric report and a social inquiry report and remanded him in custody.

17. On 5 May the court passed a sentence of three years' imprisonment on him. The judgment contained the following reasons:

"The facts (robbery by snatching a neckchain and crucifix from the victim) [are established], notwithstanding the defendant's denials, by the evidence obtained, in particular by means of the statements of Police Constable Bonci, who gave evidence on oath.

The defendant must be convicted and punished very severely, having regard to the nature of the offence committed with the use of violence.

Moreover, in a judgment dated 22 October 1981 Delta ... was sentenced to two years' imprisonment by the Paris Court of Appeal for robbery and consequently is legally a reoffender under

Article 58 of the Criminal Code ».

18. Although they had been duly summoned by the prosecution, the two girls did not attend the trial and gave no reasons for their failure to do so. The court did not take any steps to have them brought before it under Article 439 of the Code of Criminal Procedure.

The accused, whose defence was in the hands of two trainee barristers who had successively been assigned to him by the court, had not submitted any pleadings suggesting that any witnesses should be examined or asking for any further inquiries to be made into the facts.

2. Paris Court of Appeal

19. Mr Delta appealed, claiming that he was the victim of mistaken identity. Relying on Article 513, second paragraph, of the Code of Criminal Procedure (see paragraph 25 below) and Article 6 para. 3 (d) (art. 6-3-d) of the Convention, he also expressly sought to have the victim, the person who was with her and two witnesses on his behalf called; he asserted that he had himself urged the concierge and a resident in the building where he had taken refuge to alert the police, as he feared for his safety if his pursuers caught up with him.

20. On 28 September 1983 the Paris Court of Appeal (10th Division) upheld the whole of the judgment of the court below after refusing the application for examination of witnesses in the following terms:

"After the defendant's arrest, Miss Poggi formally stated that he was the man who had snatched the chain from her. Miss Blin likewise identified Delta as being responsible for the snatch theft from Miss Poggi.

These statements satisfy the Court that the defendant was guilty of the offences charged and make the requested examination of witnesses unnecessary."

3. Court of Cassation

21. Mr Delta appealed on points of law, alleging a violation of Article 6 para. 3 (d) (art. 6-3-d) of the Convention and Article 513 of the Code of Criminal Procedure.

The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 4 October 1984 on the following grounds:

"It appears from the impugned judgment of the Court of Appeal that Delta, who was prosecuted for robbery and claimed to be the victim of mistaken identity, asked the Court of Appeal to order an examination of the victim and of witnesses, and that the court below, after studying the statements taken during the investigation from Miss Poggi, the victim, and from the witness Bonci, refused this application on the grounds that those statements satisfied it that the defendant was guilty of the offences charged and made the requested examination of witnesses unnecessary.

In so holding, the Court of Appeal, far from violating the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, gave its decision a legal basis.

The ground of appeal, which does no more than attempt to call in question the appeal court's final assessment of all the evidence adduced at the trial and of whether it was appropriate to order further inquiries into the facts, cannot be accepted.

..."

C. The applicant's release

22. Mr Delta was released on 9 September 1985, after spending a little over two years and five months in prison.

II. The examination of witnesses by criminal courts

(juridictions correctionnelles de jugement)

23. In French law the rules governing the examination of witnesses by criminal courts differ according to whether the court is hearing the case at first instance or on appeal.

A. Examination in the Criminal Court

24. The main provisions of the Code of Criminal Procedure applicable in the Criminal Court are the following:

Article 437

"Anyone called to be heard as a witness shall be required to appear, to take the oath and to give evidence."

Article 438

"A witness who fails to appear or who refuses either to take the oath or to give evidence may, on an application by the public prosecutor, be punished by the court as provided for in Article 109."

Article 439

"If a witness fails to appear and has not put forward any excuse recognised as being valid and legitimate, the court may, on an application by the public prosecutor or of its own motion, order the witness to be brought before it immediately by the police in order to be examined or adjourn the case.

..."

Article 442

"Before proceeding to examine the witnesses, the presiding judge shall question the accused and take statements from him. The public prosecutor and, through the presiding judge, the civil party seeking damages and the defence may put questions to him."

Article 444

"The witnesses shall subsequently give their evidence in turn, either as to the offences with which the accused is charged or as to his personality and morals.

The witnesses called by the prosecuting parties shall be heard first, subject to the presiding judge's discretion to determine himself the order in which the witnesses shall be heard.

With the court's leave, evidence may also be given by persons suggested by the parties and who are present at the beginning of the trial but have not been formally summoned."

Article 452

"Witnesses shall give evidence orally.

Exceptionally, however, they may, with the leave of the presiding judge, make use of documents."

Article 454

"After each witness has testified, the presiding judge shall put to him any questions he deems necessary and, where appropriate, those that are suggested to him by the parties.

A witness may withdraw after testifying, unless the presiding judge decides otherwise.

The public prosecutor, the civil party seeking damages and the accused may request, and the presiding judge may always order, that a witness should temporarily withdraw from the hearing-room after giving evidence in order to be brought back and examined if necessary after other witnesses have given evidence, with or without a confrontation."

Article 455

"During the trial the presiding judge shall, if necessary, have the exhibits shown to the accused or witnesses again and shall hear their comments."

B. Examination in the Court of Appeal

25. The procedure laid down by law for the Criminal Court also applies in principle to the Court of Appeal but subject to an important proviso in the second paragraph of Article 513 of the Code of Criminal Procedure, which reads:

"Witnesses shall be heard only if the court [of appeal] so orders."

26. This provision has given rise to a line of decisions by the Criminal Division of the Court of Cassation, which appears to have departed from these precedents in 1989, that is to say after

the events in the instant case.

1. The case-law until 1989

27. The Criminal Division decided very early on that appeal courts were not required to hear afresh witnesses who had already given evidence at the original trial, even where an application had been made for them to be re-examined; it did, however, lay on them the obligation to hear and determine any applications made and to give reasons for any refusal (30 October and 13 December 1890, Bulletin criminel (Bull.) nos. 212 and 253; 20 October 1892, Recueil périodique Dalloz (DP) 1894, I, p. 140; 13 January 1916, DP 1921, I, p. 63; 20 December 1955, Dalloz 1956, sommaires, p. 29).

Where they considered it useful or necessary, appeal courts could summon witnesses who had not testified in the Criminal Court; but if they refused to call such witnesses, it was sufficient by way of reasons if they stated in their judgment that there was no need for further inquiries into the facts (20 October 1892, Bull. no. 212; 9 February 1924, Bull. no. 70; 5 November 1975, Bull. no. 237, p. 629).

2. The case-law since 1989

28. The Criminal Division's approach seems to have changed markedly in its Randhawa judgment of 12 January 1989:

"By Article 6 para. 3 (d) (art. 6-3-d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms,

'everyone charged with a criminal offence has the [right] to examine or have examined witnesses against him'. It follows that, unless it is impossible for reasons which they must specify, courts of appeal are bound, on a properly made application, to order the examination in the presence of the parties of prosecution witnesses who have not been confronted with the defendant at any stage of the proceedings. Sarb Randhawa, who was charged with drug-trafficking and a customs offence, made an application to the Court of Appeal for an examination inter partes of the witnesses Joris Suray and Catherine Guillaume, whom he had had summoned and whose statements provided, he claimed, the sole basis for the finding of guilt. He said that he had not been able to have them examined at any stage of the proceedings.

In support of its refusal of this application, and although it based its finding of the defendant's guilt solely on the statements of the aforementioned witnesses, the court below noted merely that the witnesses whose examination had been sought had been interviewed during the police inquiries and the judicial investigation and that the defendant had been informed of the charges arising from their statements.

But while a refusal to hear evidence from a prosecution witness does not, as such, infringe the aforementioned provisions of the Convention, since the court may take into account any special difficulties entailed by an inter partes examination of a given witness, for example the risk of intimidation, pressure or reprisals, such a refusal must nevertheless comply with the rights of the defence and the court must explain why a confrontation is impossible.

This was not so in the instant case, and the judgment must accordingly be set aside ..." (Bull. 1989, no. 13, pp. 37-38)

This approach was confirmed in a judgment of 22 March 1989 (case of X, Bull. 1989, no. 144, pp. 369-371).

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)

(art. 6-1, art. 6-3-d)

32. Mr Delta complained that he had not had a fair trial. He relied on paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) of the Convention:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ... ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

..."

The Paris Criminal Court and Court of Appeal had allegedly convicted him on the strength solely of statements made to the police by persons - the victim of a robbery, Miss Poggi, and a friend of hers, Miss Blin - whom neither his lawyer nor he himself had been able to examine or have examined before either of those two courts or, because of recourse to the direct committal procedure, before an investigating judge. They had thus, he claimed, deprived him of the opportunity to impugn the statements of the two persons concerned. The only witness heard at the trial was the police constable who had arrested Mr Delta and taken the initial statements of Miss Poggi and Miss Blin; but he had not witnessed the attack in the underground and was not an officier de police judiciaire (see paragraph 11 above). The Court of Appeal refused to call two defence witnesses and likewise considered it unnecessary to hear evidence from the complainant and her friend. In sum, the applicant claimed that he had been tried exclusively on the basis of written evidence, in accordance with a practice of taking hearsay evidence from policemen.

The Commission accepted these arguments in substance.

33. The Government pointed out that in the Paris Criminal Court the applicant did not call any witnesses or request any further inquiries into the facts. They added that the prosecution did not fail to summon the victim of the attack and her friend, but the girls did not appear in court; there had accordingly not been any inequality of treatment between the prosecution and the defence.

In the Court of Appeal Mr Delta had indeed asked that Miss Poggi and Miss Blin should be called, together with two defence witnesses, but the Government alleged that he had only done so in order to challenge the judgment at first instance by every possible means and not in order to complain of any inequality of treatment.

Generally speaking, Article 6 para. 3 (d) (art. 6-3-d) did not, they submitted, give an accused an unlimited right to call witnesses; it allowed the judicial authorities a discretion to decide whether hearing a witness could contribute to the discovery of the truth. The applicant had in no way shown how the appearance in court of the victim and her friend or of defence witnesses who had not seen what had happened could provide any evidence of his innocence.

34. As the guarantees in paragraph 3 of Article 6 (art. 6-3) are specific aspects of the right to a fair trial set forth in paragraph 1 (art. 6-1), the Court will consider the applicant's complaint under paragraphs 3 (d) and 1 taken together (art. 6-3-d, art. 6-1), (see, among other authorities, the Windisch judgment of 27 September 1990, Series A no. 186, p. 9,

para. 23).

Although the victim of the offence and her friend did not testify in court in person, they are to be regarded for the purposes of Article 6 para. 3 (d) (art. 6-3-d) as witnesses - a term to be given an autonomous interpretation (ibid., p. 9, para. 23) since their statements, as reported orally by Police Constable Bonci at the Criminal Court hearing and as recorded in writing by Inspector Duban, were in fact before the court, which took them into account.

35. The admissibility of evidence is primarily a matter for regulation by national law, and, as a general rule, it is for the national courts to assess the evidence before them. Accordingly, the Court's task under the Convention is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (ibid., p. 10, para. 25).

36. In principle, the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d, art. 6-1), provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness makes his statement or at some later stage of the proceedings (see the Kostovski judgment of 20 November 1989, Series A no. 166, p. 20, para. 41).

37. In the instant case Miss Poggi and Miss Blin had been interviewed, at the police-investigation stage, only by PC Bonci and the inspector who drew up the record of their statements.

They were questioned neither by an investigating judge, because of recourse to the direct committal procedure (see paragraph 15 above), nor by the courts.

Before the Criminal Court the defence did not ask in their written submissions for any witnesses to be called.

Nevertheless, the prosecution had duly summoned the two girls and, since they did not appear and gave no reasons for their failure to do so, the court could have made use of Articles 438 and 439 of the Code of Criminal Procedure to compel them to attend.

In the Court of Appeal, on the other hand, the defendant - relying, inter alia, on Article 6 para. 3 (d) (art. 6-3-d) of the Convention - expressly asked for the complainant and her friend and two defence witnesses to be summoned. This application was, however, refused (see paragraph 20 above).

Accordingly, neither the applicant nor his counsel ever had an adequate opportunity to examine witnesses whose evidence, which had been taken in their absence and later reported by a policeman who had not witnessed the attack in the underground, was taken into account by the courts responsible for trying the facts decisively at first instance and on appeal, as the file contained no other evidence. They were therefore unable to test the witnesses' reliability or cast doubt on their credibility.

In sum, the rights of the defence were subject to such

restrictions that Mr Delta did not receive a fair trial. There has accordingly been a breach of paragraph 3 (d) of Article 6 taken together with paragraph 1 (art. 6-3-d, art. 6-1).

III. APPLICATION OF ARTICLE 50 (art. 50)

39. Article 50 (art. 50) of the Convention provides:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

Under this provision the applicant sought compensation for damage and reimbursement of expenses.

43. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of all the guarantees of Article 6 (art. 6).

Whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard Mr Delta as having suffered a loss of real opportunities (see, among other authorities and mutatis mutandis, the Goddi judgment of 9 April 1984, Series A no. 76, pp. 13-14, paras. 35-36, and the Colozza judgment of 12 February 1985, Series A no. 89, p. 17, para. 38).

Taking its decision on an equitable basis, as required by Article 50 (art. 50), it awards Mr Delta compensation in the amount of FRF 100,000 in respect of the whole of the damage he suffered.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of paragraph 3 (d) of Article 6 of the Convention taken together with paragraph 1 (art. 6-3-d, art. 6-1);

2. Holds that it is not necessary also to examine the case under Article 6 para. 2 (art. 6-2);

3. Holds that it is not called upon to consider the complaints under Article 6 para. 3 (b) and Articles 17 and 18 (art. 6-3-b, art. 17, art. 18);

4. Holds that the respondent State is to pay the applicant compensation for damage in the sum of 100,000 (one hundred thousand) French francs;

5. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing